Exhibit 10.3
THIS GRANT LETTER, THE OPTION AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THIS OPTION HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, AND WILL BE
ISSUED IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “1933 ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR BASED ON AN OPINION
OF COUNSEL SATISFACTORY, IN FORM AND SUBSTANCE, TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
1933 ACT AND IN ACCORDANCE WITH REGULATION S, AS PROMULGATED BY THE SECURITIES AND
EXCHANGE COMMISSION (“REGULATION S”) APPLICABLE FEDERAL, STATE, AND FOREIGN
SECURITIES LAWS. HEDGING TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE 1933 ACT.
Date:_____________
To the Participant,
______________, ID _____________
| 1. |
You
are hereby notified that on _____________ the Board of Directors of the Company
has resolved that you shall be granted _____________ options, each to purchase
one share of Common Stock par value of US$0.001 of the Company at an exercise
price per share of US$ ___(the “Options”). |
| 2. |
The
Options, shares resulting from their exercise (“Shares”) and
any additional rights including share bonus that shall be distributed to you in
connection with the Options (“Additional Rights”), shall be
granted on your behalf to the Trustee – the ESOP Trust Company (the
“Trustee”). |
| 3. |
The
Options, Shares and Additional Rights shall be allocated on your behalf to the
Trustee under the provisions of the Capital Gains Tax Track and will be held by
the Trustee for the period stated in Section 102 of the Income Tax Ordinance,
1961 and the Income Tax Regulations (Tax Relieves in Allocation of Shares to
Employees), 2003 promulgated thereunder (“Section 102”). |
| 4. |
The
Options, Shares and Additional Rights are granted to you and allocated to the
Trustee according to the provisions of Section 102, the 2008 Israeli Stock
Option Plan adopted by the Company (“Plan”) and the Trust
Agreement signed between the Company and the Trustee attached herewith and made
a part of this notice. |
| 5. |
Unless
otherwise determined by the Administrator, all Options granted to you on this
date shall, subject to your continued employment with or service to the Company
or Affiliate, become vested and exercisable in accordance with the vesting
schedule detailed below. |
| 6. |
The
Options are granted to you on condition that you sign the Approval of the
Participant as detailed below. |
| ______________________ |
|
______________________ |
| Acro Inc. |
|
Date |
2
APPROVAL OF THE
PARTICIPANT:
I hereby agree that all the Options
and Additional Rights granted to me, shall be allocated to the Trustee under provisions of
the Capital Gains Tax Track and shall be held by the Trustee for the period stated in
Section 102 and in accordance with the provisions of the Trust Agreement, or for a shorter
period if an approval is received from the tax authorities.
I am aware of the fact that upon
termination of my employment in the Company, I shall not have a right to the Options,
except as specified in the Plan.
I hereby confirm that:
| 1. |
I
read the Plan and I understand and accept its terms and conditions. I am aware
of the fact that the Company agrees to grant me the Options based on my
confirmation; |
| 2. |
I
understand the provisions of Section 102 and the applicable tax track of this
grant of Options; |
| 3. |
I
agree to the terms and conditions of the Trust Agreement; |
| 4. |
Subject
to the provisions of Section 102, I confirm that I shall not sell nor transfer
the Options, Shares or Additional Rights from the Trustee until the end of the
Holding Period; |
| 5. |
If
I shall sell or withdraw the shares from the Trust before the end of the
Holding Period as defined in Section 102 (“Violation”), either
(A) I shall reimburse the Company within three (3) days of its demand for the
employer portion of the payment by the Company to the National Insurance
Institute plus linkage and interest in accordance with the law, as well as any
other expense that the Company shall bear as a result of the said Violation
(all such amounts defined as the “Payment”) or (B) I agree
that the Company may, in its sole discretion, deduct such amounts directly from
any monies to be paid to me as a result of my disposition of the Shares; |
| 6. |
By
signing this letter, I hereby give an irrevocable proxy to the representative
appointed by the Company’s Board of Directors in accordance with Section
16 of the Plan, to vote any Shares that will be issued to me or to the Trustee
for my benefit following an exercise of Option granted to me under the Plan.
The proxy shall be valid until consummation of an IPO by the Company; |
| 7. |
I
understand that this grant of Options is conditioned upon the receipt of all
required approvals from the tax authorities; |
3
| |
I
hereby acknowledge and agree that: |
| |
(a) |
none
of the Options or Shares have been registered under the 1933 Act, or under
any state securities or “blue sky” laws of any state of the
United States, and, unless so registered, may not be offered or sold
in the United States or, directly or indirectly, except in accordance
with Regulation S, pursuant to an effective registration statement
under the 1933 Act, or based on an opinion of counsel satisfactory,
in form and substance, to the Company that such registration is not
required pursuant to an exemption from the registration requirements
of the 1933 Act; |
| |
(b) |
I
acknowledge that the Company has not undertaken, and will have no obligation,
to register any of the Options or Shares under the 1933 Act; |
| |
(c) |
I
represent and warrant that I am an Accredited Investor, as the term is defined
in Regulation D under the 1933 Act; |
| |
(d) |
the
decision to execute this Grant letter and receive the Options hereunder has
not been based upon any oral or written representation as to fact or
otherwise made by or on behalf of the Company; |
| |
(e) |
no
securities commission or similar regulatory authority has reviewed or passed
on the merits of the Options or Shares; |
| |
(f) |
I
am resident in the jurisdiction identified in my address set forth below; |
| |
(g) |
there
is no government or other insurance covering the Options or Shares; |
| |
(h) |
there
are risks associated with the exercise of the Options into Shares,
including but not limited to risks associated with investment in a
high-tech company; |
| |
(i) |
I
have had a reasonable opportunity to ask questions of and receive answers from
the Company in connection with the grant of the Options hereunder,
and to obtain additional information, to the extent possessed or
obtainable without unreasonable effort or expense, necessary to
verify the accuracy of the information about the Company; |
| |
(j) |
the
books and records of the Company were available upon reasonable notice for
inspection, subject to certain confidentiality restrictions, by me
during reasonable business hours at its principal place of business,
and all documents, records and books in connection with the grant of
the Options hereunder have been made available for inspection by me,
my lawyer and/or advisor(s); |
| |
(k) |
the
Company will refuse to register any transfer of the Options or Shares not
made in accordance with the provisions of this Regulation S, pursuant
to an effective registration statement under the 1933 Act or not
based upon an opinion of counsel satisfactory, in form and substance,
to the Company pursuant to an available exemption from the
registration requirements of the 1933 Act; |
| |
(l) |
I
have been advised to consult my own legal, tax and other advisors with respect
to the merits and risks of the exercise of the Options and with
respect to applicable resale restrictions, and I am solely
responsible (and the Company is not in any way responsible) for
compliance with: |
| |
(i) |
any
applicable laws of the jurisdiction in which the I am a resident in
connection with the grant of the Options hereunder, and |
| |
(ii) |
applicable
resale restrictions. |
4
| 9. |
Representations
and Warranties |
| |
I
hereby represent and warrant to the Company that: |
| |
(a) |
I
have the legal capacity and competence to enter into and execute this Grant
letter and to take all actions required pursuant hereto; |
| |
(b) |
I
will exercise the Options into Shares for investment only and not with a view
to resale or distribution and, in particular, I have no intention to
distribute either directly or indirectly any of the Options or Shares; |
| |
(c) |
I
am receiving the Options as principal for my own account for investment
purposes only, and not with a view to, or for, resale, distribution or
fractionalization thereof, in whole or in part, and no other person has a
direct or indirect beneficial interest in such Options or Shares; |
| |
(d) |
I
am not an underwriter of, or dealer in, the common shares of the Company, nor
am I participating, pursuant to a contractual agreement or otherwise, in
the distribution of the Options or Shares; |
| |
(e) |
I
am not aware of any advertisement of any of the Options; |
| |
(f) |
no
person has made to me any written or oral representations; |
| |
(i) |
that
any person will resell or repurchase any of the Options or Shares; |
| |
(ii) |
that
any person will refund the exercise price of any of the Options; |
| |
(iii) |
as
to the future price of value of any of the Options or Shares; |
| |
(iv) |
that
any of the Options or Shares will be listed and posted for trading on any
stock exchange or automated dealer quotation system or that application
has been made to list and post any of the Options of the Company on any
stock exchange or automated dealer quotation system; or |
| |
(v) |
as
to the tax or accounting consequences of grant or exercise of the Options, or
as to profits, losses or cash flow which may be received or sustained as a
result of Options or Shares. |
| |
(g) |
I
am not a “U.S. person” as that term is defined under Regulation S; |
| |
(h) |
On
the date hereof, I am outside the United States, and the grant of the Options
was not made to me in the U.S.; |
| |
(i) |
I
am receiving the Options for my own account and not for the account or benefit
of a “U.S. person” (as defined in Regulation S), or is a U.S.
person who purchased securities in a transaction that did not require
registration under the 1933 Act, and the sale has not been prearranged
with a buyer in the United States; |
5
| |
(j) |
I
acknowledge that I have not received the Options as a result of, and I will
not engage in, any “directed selling efforts” (as defined in
Regulation S under the 1933 Act) in the United States in respect of the
Options and the Shares resulting from their exercise, which would include
any activities undertaken for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the United
States for the resale of the Options and the Shares resulting from their
exercise; provided, however, that I may sell or otherwise dispose of the
Options and the Shares resulting from their exercise pursuant to
registration under the 1933 Act and any applicable state and provincial
securities laws or under an exemption from such registration requirements
and as otherwise provided herein; and |
| |
(k) |
The
statements made by me herein are true and correct and are confirmed hereby,
and the Company shall be entitled to rely thereon. |
| 10. |
Legending
of the Options and the Shares |
| |
(a) |
I
hereby acknowledge that upon the issuance thereof, and until such time as the
same is no longer required under the applicable securities laws and
regulations, the certificates representing the Options and the Shares will
bear a legend in substantially the following form: |
THESE SECURITIES HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE AND HAVE BEEN ISSUED IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR BASED ON AN OPINION OF COUNSEL SATISFACTORY, IN FORM AND SUBSTANCE, TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED PURSUANT TO AN AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN ACCORDANCE WITH APPLICABLE FEDERAL,
STATE, AND FOREIGN SECURITIES LAWS, INCLUDING BUT NOT LIMITED TO REGULATION S AS
PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION. HEDGING TRANSACTIONS INVOLVING
THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE 1933 ACT.
| |
(b) |
I
hereby acknowledge and agree to the Company making a notation on its records
or giving instructions to the registrar and transfer agent of the Company
in order to implement the restrictions on transfer set forth and described
in this Grant Letter. |
| 11. |
I
hereby confirm that I read this letter thoroughly, received all the
clarifications and explanations I requested, I understand the contents of this
letter and the obligations I undertake in signing it. |
——————————————
Name of Participant |
——————————————
Signature |
——————————————
Date |
6
